Almost all lawyers experience stress, but unless it becomes toxic, there is little risk to the client. Occasionally things get truly out of control. That’s when important deadlines are missed, communication with the client diminishes (or ends), and files languish. In extreme cases, the lawyer ‘pretends’ to practice by misrepresenting to the client that work has been done when it hasn’t been.
Valerie Edwards, experienced LAWPRO defence counsel, Torkin Manes LLP
With proper treatment and effective management, lawyers with mental or physical issues can and do thrive in legal practice. But left unchecked, unhealthy lawyers can put client files at risk. Mental issues, whether caused by stress or illness, can result in a lack of judgment, memory loss, and concentration. A constant sense of danger can permeate daily life, along with feelings of inadequacy. Symptoms can manifest physically in the form of fatigue, muscle tension, pain, impaired sleep, and heart palpitations. Lawyers suffering from addiction can ignore everything in search of the next high or become completely immersed in damaging behaviours. And lawyers unprepared to deal with debilitating physical illnesses may find themselves suddenly incapable of simple tasks. To say nothing of how their daily lives are affected, these symptoms can result in poor client service and ultimately malpractice claims. Below are some examples of how lawyers can fail to deliver good client service when their problems are not addressed.
Depression is one of the most common types of mental illness from which lawyers suffer. Research has shown that lawyers, as a group, have a greater tendency to depression than the average person. Depressed lawyers can cease to take an interest in practising. Sapped of the energy to communicate legal information to clients, depressed lawyers can fail to advise of important legal consequences, for
example, when negotiating contracts and settlements. Steps that need to be taken to investigate a file, such as conducting corporate searches and requesting reports, are summarily dismissed, and the lack of action is rationalized as saving money and time.
Depressed lawyers may choose only to work on the files that attract their interest on that day – leading to procrastination on other files and ultimately severely delayed files. Clients that are not liked receive the cold shoulder just when they are most in need. Depressed lawyers may also be more likely to accept retainers where there is a conflict of interest, especially where they cannot find the strength to break bad news to their clients.
While some physical illnesses can creep up slowly, traumatic events can suddenly disable healthy lawyers. If a contingency plan is not put into place, files can be left untouched for weeks, months, or longer, depending on the lawyer’s recovery progress. To compound matters, coming to terms with a physical disability can be difficult. Often serious physical illnesses are associated with depression, anxiety, or other mental illnesses.
Addiction to alcohol and other damaging substances or behaviours can be caused by an inability to cope. Lawyers may self-medicate or choose to compensate for the lack of ability to control their circumstances by drinking too much or playing video games at all hours, among other things. A lawyer suffering from addiction may ignore the needs of clients and their files in favour of the addiction. If the lawyer is addicted to a damaging substance like alcohol or drugs, the problem is compounded by the side effects caused by the substance, such as impaired judgment, paranoia, and anxiety. Every aspect of a file is in jeopardy.
Maintaining good client service and reducing the claims risk
A support system can lessen the claims risk. Mentors, friends, and family are all resources that can step up in times of need. The Member Assistance Program (MAP) provides resources including a health risk assessment, information on stress, depression, anxiety, separation/ divorce, and psychological challenges, and peer counselling. A few small steps can go a long way to improving the lawyer’s ability to cope and to keep the practice claims-free.
Lawyers should implement a firm policy to handle unexpected work interruptions should a lawyer’s health go sideways. LAWPRO sees, all too frequently, claims that occur when lawyers suddenly “disappear” for health or other reasons and files are left in the wind. This may trigger a cluster of administrative dismissals, for example. All active files should be monitored by more than one person so that they can be transferred when necessary.
Every one of the top four sources of claims – communication failures, inadequate investigation, missed deadlines/poor time management, and conflicts of interest – present even greater risks when a lawyer is unhealthy. Whether lawyers suffer from addiction, mental, or physical illness, or less severe forms of stress, client service often suffers and once again, the risk of claims rises. Taking steps to stay healthy will help you be a happier and better lawyer.
This article originally appeared in the September 2015 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives